Employment law encourages employers to use a formal procedure that includes investigation of serious poor performance or poor conduct of an employee after an informal attempt to settle any dispute has been made. The procedure should be an impartial way of assessing evidence and arguments presented by the employee and employer. Employment tribunals recognise that a hearing should be part of a formal disciplinary process and that the employer or employee can ask for this process.
Code of practice
Employment tribunals recognise the procedure set out by the ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice, March 2015. Regardless of the size of the business or organisation, if an employer acts unreasonably in not following a valid disciplinary or capability procedure, they could face enhanced costs at an employment tribunal.
Under employment law the principles of a valid procedure should include:
- – being fair and consistent
- – investigation to get as much information as possible
- – allowing a relevant person to attend a disciplinary or grievance meeting to support the employee
- – keeping written records
- – giving everyone a chance to have their say before making a decision
- – making a decision as soon as possible, and
- – allowing an appeal by the employee.
If both sides agree, mediation can be used at any stage. The mediator could be from within the organisation or outside. An employment tribunal is likely to accept adjustments to a fair and consistent procedure for a small business. So, a manager of a small business could manage the process on their own.
A hearing or meeting should be held as soon as possible. Both parties can bring evidence and witnesses to support their case and also ask questions.
Where the procedure could result in a formal warning or other disciplinary action, employment law gives employees have a right to be accompanied at the hearing by a companion. Employment law solicitors usually do not accompany employees at this stage. The companion could be a fellow worker or a trade union representative or official. After a capability hearing, employment law solicitors would advise an employer to give the employee opportunities to improve, a final written warning or in severe cases dismissal. An appeal should always be afforded to employees.
When an employee has a complaint about the employer or circumstances in the workplace, then he or she can lodge a grievance.
The best employment lawyers would advise a worker to:
– raise the grievance as soon as possible and
– take any actions expected of them.
An employee’s complaint could involve: terms of employment, pay and working conditions, disagreements with co-workers, discrimination, or statutory employment rights.